Customs And Border Protection Clarifies: You Have No Rights While Traveling

The government is like a poorly trained dog. If you let one bad behavior go, it just escalates until they bite.

The government has been searching electronics like cell phones and laptops at the border since early in the Bush administration. But because the 9/11 attacks were fresh, and because the practice was not widespread, it went largely unnoticed.

Fast forward to fiscal year 2015 and the Customs and Border Protection searched 8,503 airline passengers’ electronic devices. In FY 2016 they searched 19,033. And in FY 2017 CBP searched the devices of 30,200 travelers.

The CBP obtained no warrants for these searches. Many people searched were foreign travelers to the U.S. but last year over 6,000 were American citizens.

In response to growing complaints Customs and Border Protection revised their policy. Last week they issued a new directive. But in some ways, it is worse.

For starters, their guidance claims the authority to search a traveler’s electronic devices “with or without suspicion.”

The guidance now claims passengers are “obligated” to turn over their devices as well as passcodes for examination. If they fail to do so, agents can seize the device.

That is all considered a “basic search.” Agents must have suspicion in order to conduct an “advanced search.” This includes copying information from devices, or analyzing them with other equipment.

Finally, CBP agents can not “intentionally” search information stored on the cloud, versus on the device’s hard drive.

What this means:

It actually adds insult to injury that the new guidance starts: “CBP will protect the rights of individuals against unreasonable search and seizure and ensure privacy protection while accomplishing its enforcement mission.”

Nothing could be further from the truth. This is clearly a violation of the Fourth Amendment protections against unreasonable search and seizure. This violates the privacy of everyone searched.

Then they demand you forgo your Fifth Amendment rights against self incrimination. If you refuse to give out your password, they further violate the Fourth Amendment by seizing your device.

CBP agents are human. There is no inherent reason that they can be trusted with information like passwords. There is no reason why passengers should have to trust that their copied information will actually be destroyed according to CBP policy.

There is no legal justification to threaten the contacts and sensitive information that journalists might be transporting. This further adds First Amendment concerns to this intrusive policy. It could easily be used to chill free speech and freedom of the press.

Luckily there is a lawsuit in the works challenging this policy, but a ruling cannot happen quick enough.

In the meantime, prepare carefully for international travel. You may even want to travel only with “burner” devices; meaning you don’t mind if they are confiscated for refusing an unconstitutional search.